M (Children: Applications By Email) [2020] EWCA Civ 806

This was a case management appeal following a case management decision made via email. Such appeal was allowed by the Court of Appeal.

In terms of background, the Local Authority had issued proceedings in September 2020. The 4 children who these proceedings concerned had not been living with the Mother for some time before, with the eldest child, aged 5, being out of her care since January 2020 and the younger 3 followed in August 2020. All 4 children were living with their maternal uncle. The issue in the case appeared to be whether they should remain with uncle, or whether they should be returned to the Mother.

A cognitive assessment on the Mother had concluded that Mother had the skills at the 9-year old level. Mother was assisted with an advocate and also an intermediary. As a result of the cognitive assessment, the Local Authority made an application for a psychological assessment of Mother. The application was heard by the allocated judge, who was a District Judge. The application was unopposed by the parties, and the matter was timetabled through to IRH.

The standard compliance warnings were also on the case management order, in particular in relation to the parties needing to inform the allocated judge if the directions cannot be complied with.

There then becomes a serious of events which becomes the point of this appeal. The Mother unfortunately missed her first appointment with the instructed psychologist because she had forgotten it. However, it was confirmed on behalf of Mother that she wished to have a further appointment. This was arranged and the psychologist offered 3 dates and stated she would require an extension of time as a result.

Unfortunately, Mother then went off the radar and was uncontactable, meaning that a further appointment couldn’t be confirmed. It was also becoming evident that the direction for the psychologist’s report was not going to be complied with. 

Unbeknown to any of the parties at the time, the reason for Mother’s disengagement at the time was due to maternal grandmother being taken ill and sadly passing away in hospital.

After some time, on the afternoon of the 13th April, the solicitor for the Guardian emailed the parties saying that she had been instructed to write to the Court and ask for the direction to be ‘vacated’ in its entirety. The Guardian was of the view any delay would impact the timetable and she couldn’t be confident that Mother would engage with her solicitors again. 

On the morning of the 14th April, the Local Authority wrote to the parties informing them that the social worker had become aware of the sad news about maternal grandmother. Mother’s solicitors asked whether the social worker could ask Mother to contact them. The solicitor for the Guardian responded later that day to say that she had already written to the Court as per her instructions. In fact, that email had only been dictated but not yet sent. The email to the Court was sent on the afternoon of the 14th April. There were two important points to that email. Firstly, it was unamended to what had already been dictated so it does not appear to have made reference to Mother’s upsetting news in relation to maternal grandmother. Secondly, it was sent to the Designated Family Judge, rather than the allocated District Judge.

Mother’s solicitors immediately emailed the Court themselves explaining the Mother’s difficulties and instead of making the order to vacate the direction on paper, they invited the Court to list the matter for a directions hearing.

An hour after Mother’s email, the Judge emailed the parties granting the order and discharging the direction for the psychologist report.

Mother’s solicitors sought reasons for the Judge’s decisions. The Judge responded and it appeared her reasoning was based upon the contents of the email from the Children’s solicitor. This is despite the fact she was not the allocated judge and it was not clear what other information about the case she had.

Mother therefore appealed and a stay in proceedings was granted. The Mother submitted that what happened ‘went far beyond anything that could be characterised as robust case management’ [33]. Even if there was no formal C2 application, procedural fairness still had to be observed.

The Local Authority did not argue that that the Judge’s reasoning was sufficient, or that the application was dealt with fairly. However, attempted to say that the report was no longer necessary as there had been an alleged incident between the parents had taken place since the report was directed. The Guardian was neutral but did not seek to challenge the Mother’s arguments. She argued the same as the Local Authority, however in respect of whether the report was still necessary given this later incident.

The Court of Appeal allowed the appeal. Lord Justice Jackson considered that the order was wrong and unjust for a serious procedural irregularity. Whilst the Court’s approach may have been a correct approach to take for a consent order, this wasn’t a consent order. It was considered that the Court failed to take into account Mother’s difficulties, which was why the application was necessary to begin with, as well as her exceptional family circumstances, despite being bound to do so. The Court also did not hear arguments from the parties, nor considered Mother’s invitation for a hearing. Nor did the Court explain why a hearing wasn’t appropriate or needed [37]. Lord Justice Jackson considered that the Court could and should have referred the matter to the allocated judge, or, if the allocated judge was not in a position to deal with it, ensured the DFJ had enough information or held a short remote hearing [39]. ‘This process fell short of what is required in a case concerning the futures of four young children’ [38].

As a result, the direction was revived and re-timetabled, with a different expert identified. The Court of Appeal highlighted that if Mother failed to attend her appointment (and it was recorded on the order that she would attend), then she can expect the order to be discharged.

This appeal ‘illustrates the problems that can arise when this convenient but relatively informal means of communication is used as a means of making applications and orders’ [2].

Full judgment can be found here: https://www.bailii.org/ew/cases/EWCA/Civ/2021/806.html